Office of the Attorney General
State of Texas

Re: Authority of a county or city to promulgate ordinances
banning open containers of alcoholic beverages in motor vehicles

Dear Mr. Westergren:

You have requested our opinion as to whether a municipality or
a county may ban the possession of open containers of alcoholic
beverages in motor vehicles through an ordinance adopted by the
city council or an order adopted by the commissioners court. We
conclude that the preemption provisions of the Texas Alcoholic
Beverage Code preclude such an order or ordinance.

Section 1.06 of the code provides in full as follows:

Unless otherwise specifically provided by the terms of this
code, the manufacture, sale, distribution, transportation, and
possession of alcoholic beverages shall be governed exclusively
by the provisions of this code.

We believe that this preemption provision is very clear and
simply precludes a city or county from enacting a local ordinance
banning the possession of alcoholic beverages in automobiles.

In your brief you assert that a city would have such authority
under their general grant of power to pass ordinances for the
public health and welfare subject to the constitutional provision
that

[N]o charter or any ordinances passed under said charter
shall contain any provision inconsistent with the Constitution of
the State, or of the general laws enacted by the Legislature of
this State;

Tex. Const. art. XI, s 5. See also V.T.C.S. art. 1165. With
regard to counties you propose that a commissioners court order
banning open containers would be authorized by provisions of the
newly codified "county road and bridge act," Acts 1983, 68th
Leg., ch. 288, at 1431, to be codified as article 6702-1, section
2.301(a)(1) which provides as follows:

The commissioners court of any county may regulate and
restrict traffic on county roads and on other county-owned land
under its jurisdiction.

This section also requires a public hearing before the adoption
of traffic regulations and specifically authorizes the
commissioners court to adopt speed limits, load limits, and a
system of traffic controlled devices.

In the case of Royer v. Ritter, 531 S.W.2d 448, 449
(Tex.Civ.App.--Beaumont 1975, writ ref'd n.r.e.), the court held
that a local ordinance passed by a city and which regulated the
hours of sale for liquor package stores conflicted with the
predecessor Liquor Control Act. The local ordinance prohibited
the opening of a package store on days and at times not
prohibited by state law. The court recognized five "distinct"
areas of municipal regulatory authority over alcoholic beverages:
(1) the assessment for local fees, (2) prohibiting sales in
residential sections, (3) prohibiting sales near churches and
schools, (4) regulating the sale of beer within the city limits,
(5) adopting hours for the sale of mixed beverages. See
Alcoholic Beverage Code ss 11.38; 105.03; 109.31-.33. The court
held that the ordinance in question was unauthorized by the state
liquor laws and was inconsistent therewith. The court stated the
following:

The Legislature, by granting to the cities power of control
in five instances above set forth, has ... denied this power in
any instance not specified. There is no authority in the Texas
Liquor Control Act for the Ordinance under review.

Furthermore, this Ordinance is inconsistent with the Act. It
is true that the Legislature stated when package stores are not
to be open, rather than the converse. But this is merely one way
of stating when they may be open. When the Beaumont Ordinance
adds to the times they must be closed, the Ordinance is
inconsistent with the statute.

....

If the Legislature had intended for the City Council to have
the authority to extend the time of closing or opening of package
stores from the state provision, it could have said so. Having
failed to do so, we believe they [the Legislature] intended the
provision for closing in the act to be statewide and exclusive.
(Emphasis in original).

Roger v. Ritter, supra at 449-50. Based on the Royer case, we
conclude that the legislature has not authorized cities and
counties to adopt an open container ordinance.

SUMMARY

A city or county is prohibited from adopting a local
ordinance banning the possession of open containers of alcoholic
beverages in motor vehicles.